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Revitalizing Dormant Commerce Clause Review for Interstate Coordination
(Minnesota Law Review, 2015)
Interstate coordination presents one of the most difficult challenges for American federalism as well as for energy markets and policy. Existing laws vest the approval of large-scale energy infrastructure projects such as ...
The One Percent Problem
(Columbia Law Review, 2011)
Parties frequently seek exemption from regulation on the ground that they contribute only a very small share to a problem. These one percent arguments are not inherently questionable; it can be efficient to exclude relatively ...
Indemnification as an Alternative to Nullification
(Montana Law Review, 2015)
The federalization of criminal law arguably threatens the states’ traditional police powers. Congress has criminalized myriad activities the states condone (or at least tolerate); it has denied federal criminal defendants ...
Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I
(Stanford Law Review, 2013)
What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about ...
Free Trade, Fair Trade, and Selective Enforcement
(Columbia Law Review, 2018)
The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should ...
Reclaiming the Legal Fiction of Congressional Delegation
(Virginia Law Review, 2011)
The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false ...
Condemning the Decisions of the Past
(Fordham Urban Law Journal, 2011)
This brief Essay, part of a Fordham Urban Law Journal Symposium on eminent domain in New York, argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond ...
Say on Pay Around the World
(Washington University Law Review, 2015)
Shareholders have long complained that top executives are overpaid by corporate directors irrespective of their performance. Largely powerless to stop these practices, in 2002, they prevailed upon the U.K. Parliament to ...
Surprise vs. Probability as a Metric for Proof
(Seton Hall Law Review, 2018)
In this Symposium issue celebrating his career, Professor Michael Risinger in Leveraging Surprise proposes using "the fundamental emotion of surprise" as a way of measuring belief for purposes of legal proof. More
specifically, ...
Comparative Empiricism and Police Investigative Practices
(North Carolina Journal of International Law & Commercial Regulation, 2011)
In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. ...